DAVID WHEAT v. DANNY G. MARTIN
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RENDERED: JUNE 15, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001801-MR
DAVID WHEAT
v.
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NO. 95-CI-00312
DANNY G. MARTIN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
MILLER, JUDGE:
David Wheat brings this pro se appeal from a July
6, 2000, judgment of the Barren Circuit Court entered upon a jury
verdict.
We affirm.
On April 15, 1993, appellant, David Wheat (Wheat), and
appellee, Danny G. Martin (Martin), were involved in a car
accident at the intersection of Kentucky Highway 90 and Flint
Knob Road in Barren County, Kentucky.
Martin was westbound on
Highway 90, the superior highway at this intersection.
southbound on Flint Knob Road.
at this intersection.
Wheat was
Flint Knob Road has a stop sign
After letting his wife out of the van so
she could get into another vehicle, Wheat attempted to pull out
across Highway 90 from Flint Knob Road into a gravel parking
area.
As Wheat attempted to cross the road, he pulled in front
of Martin and was struck by the front of Martin's vehicle on the
left side of his van near the rear of his vehicle.
It is
undisputed that Martin was entirely in his lane at the point of
impact.
Other than the two parties involved, there were no eye-
witnesses to the accident.
June 23, 1995.
The original complaint was filed on
At this time, Wheat was represented by counsel.
The case came on for trial by jury on July 5 and 6, 2000.
The
jury found unanimously in favor of Martin and the court therefore
dismissed the case by judgment entered July 6, 2000.
This appeal
follows.
Drafted as a single issue, it appears Wheat has made
four assignments of error.
We will deal with each in turn.
Wheat's first assignment of error is that he was
prejudiced by failure of his trial attorney to introduce certain
evidence.
Specifically, he contends his attorney failed to
introduce certain photographs and failed to call a certain
witness.
Negligence of an attorney is imputable to the client
and is not grounds for a new trial.
See Vanhook v. Stanford-
Lincoln County Rescue Squad, Inc., Ky. App., 678 S.W.2d 797
(1984).
As such, we deem this assignment of error without merit.
Wheat's next assignment of error is that the trial
judge acted improperly showing “favoritism” to Martin and also
communicating “an inference of causation” to the jury.
disagree.
We
After the close of Wheat's case, Martin made a motion
-2-
for a partial directed verdict.
hearing of the jury.
The motion was made out of the
In the discussion of this motion, the trial
judge commented that Wheat had pulled out in front of Martin and
indicated he did not see how Wheat could not be at least
partially at fault.
As this comment was made out of the hearing
of the jury and on consideration of a motion for a partial
directed verdict, we perceive no favoritism or inference of
causation was ever communicated to the jury.
The second statement complained of by Wheat amounts to
the circuit court's reading of its instructions, including a
partial directed verdict.
In the partial directed verdict, the
court ruled that Wheat was at fault, and that the jury would have
to determine whether Martin shared in the fault, and if so,
apportion fault between the two parties.
We are of the opinion
that there is no error in the manner in which the partial
directed verdict was communicated or read to the jury.
Wheat's third assignment of error is that counsel for
Martin made improper comments during closing arguments.
Specifically, Wheat complains of two statements.
He first takes
issue with the statement that Wheat produced no witnesses to
corroborate his claim that Martin admitted to speeding.
The
second was a statement pointing out to the jury that the judge
had, in fact, directed a verdict finding Wheat at least in part
at fault.
trial.
There were no objections made to the statements at
As such, our review is under substantial error.
Civ. P. (CR) 61.02.
Ky. R.
Opposing counsel merely set out two facts.
Even if doing so was improper, it does not rise to the level of
-3-
manifest injustice.
882 (1977).
Cf. Anderson v. Calm, Ky. App., 554 S.W.2d
As such, we do not believe the comments constitute
substantial error.
Wheat's final assignment of error is that the partial
directed verdict entered by the trial court was improper.
Upon
motion by Martin, the trial court granted a partial directed
verdict that Wheat was at least partly at fault.
In appellate
review of ruling on motion for directed verdict, we must ascribe
to evidence of all reasonable inferences which support the claim
of the prevailing party.
S.W.2d 16 (1998).
See Bierman v. Klapheke, Ky., 967
In this case, there was evidence Martin had
the right of way and was not traveling at excessive speed.
Further evidence indicated Wheat pulled into Martin's path.
Given the above, we cannot say the trial judge was clearly
erroneous in granting the partial directed verdict.
For the foregoing reasons, the judgment of the Barren
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David Wheat, Pro Se
Glasgow, Kentucky
James I. Howard
Horse Cave, Kentucky
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